Constitutional Law: Rights and Liberties
POSC 34083 - 065 / Fall 2012
Fall Term 2012
Political Science 34083, Section 065
3 credit hours
Tuesdays and Thursdays: 3:30-4:50 p.m.
2008 Scharbauer Hall
Professor Donald Jackson
Email: d.w.jackson@tcu.edu
Office: 2007A Scharbauer Hall
Office hours: Prof. Jackson will be
available to meet with you before, or
following, each class. You also may
suggest a particular time to meet with him
by using the email address above.
Purpose: This is an introduction to Civil Rights and Liberties under the Constitution of the United States.
While we have had only one Constitution since 1787, there have been some very important additions. The first
was the addition of the Bill of Rights in 1791.
The second was a consequence of the Civil War, when the “Radical Republicans” who controlled the Congress
added three major amendments, the 13th Amendment, which went into effect in 1865, the 14th Amendment,
which went into effect in 1868 and the 15th Amendment, which went into effect in 1870.
Probably the most important amendment enhancing the powers of the national government was the
16th Amendment of 1913, when the national government was given the power to levy an income tax.
The next big change did not involve a constitutional amendment, but from 1937 forward the Supreme Court
accepted the major innovations of the New Deal and affirmed the arrangement of powers that mostly have
been with us since then. The unanimous decision in Brown v. Board of Education in 1954 was another major
milestone.
However, we currently are at a critical juncture in American politics, a juncture that may well determine the
meaning of our Constitution for the foreseeable future. The recent Affordable Health Care Act ruling is a major
case, and there are additional important upcoming issues remaining.
We will examine the major issues involving civil rights and liberties that have mostly been confronted since
1937, but the 1950s and 60’s brought many changes that expanded civil rights and liberties. Since then, we
have mostly seen the expansion of equal protection of the law to include most Americans, citizens or not, into
our civil society with equal rights. But there are a few Americans who still are knocking on the door of civil
society.
All views are encouraged and welcomed in this class. I hope we will manage to have engaging and thorough
discussions of the issues that have been involved in the development of our civil rights and liberties.
Required Text: Lee Epstein and Thomas Walker, CONSTITUTIONAL LAW FOR A CHANGING
AMERICA – RIGHTS, LIBERTIES AND JUSTICE (2010 Ed.).
There will also be a required packet of supplemental cases. You should purchase your packet from
one of the assistants in the Political Science Office, 2007 Scharbauer Hall, and read the cases as they
are assigned in the syllabus. The cost of the packet is $15.00.
Class Attendance is expected and required. A roll sheet will be used to check attendance. If you accrue
more than 3 unexcused absences your term grade will be reduced by 10%. If you have more than 6
unexcused absences a reduction of 20% will be applied to your grade.
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Constitutional Law: Rights and Liberties
POSC 34083 - 065 / Fall 2012
Grades will be assigned on the following basis:
Grading Policy
1st Exam - Sept. 18, 2012: 25%
2nd Exam - Nov. 1, 2012: 35%
Final Exam - Dec. 11, 2012: 30%
Presentations of briefs - 10%
Total: 100%
See attendance policy above -- If you accrue more than 3 unexcused absences, your term grade will be
reduced by 10%. If you have more than 6 unexcused absences a reduction of 20% will be applied to your
grade.
Grades will be determined on a standard A-F (+/-) scale as follows:
+/- grades will be awarded at the end of the term
Numerical grade distributions for the term. I may curve slightly upward, but not downward from this
scale:
A=
A- =
B+ =
B=
B- =
C+ =
C=
C- =
93.5 and above
89.5-93.4
86.5-89.4
82.5-86.4
79.5-82.4
76.5-79.4
72.5-76.4
69.5-72.4
D+ =
D=
D- =
F=
66.5-69.4
62.5-66.4
59.5-62.4
59.4 and below
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Constitutional Law: Rights and Liberties
POSC 34083 - 065 / Fall 2012
COURSE SCHEDULE:
Introduction & The Judiciary: Institutional Powers and Constraints
August 21
Introduction to the Course. Understanding the SCOTUS
SCOTUS is an acronym that means Supreme Court of the United States
Following class, read pp. 3 through 46
August 23
The Judiciary: Institutional Powers and Constraints
Before class read pp. 47 through 66
Also read the pages for each case
Cases to brief and discuss in class:
1. Marbury v. Madison (1803), p. 48
This was the case that established the power of judicial review.
2. Ex parte McCardle (1869), p. 58
The power of Congress to limit appellate review was upheld.
Constraints on Judicial Power
1 Justiciability - Appropriate to be heard and decided by a court, p. 59
2. No Advisory Opinions, p. 60
3. No Collusive Suits. See Muskrat v. U.S (1911), p. 61
4. Mootness. See DeFunis v. Odegaard (1974), p.61
5. Ripeness. See International Longshoremen’s Union v. Boyd (1954), p.62
6. Political Questions. Colegrove v. Green (1946), Baker v. Carr (1962), p. 62
7. Standing to Sue. Frothingham v. Mellon (1923, taxpayer suits), Flast v. Cohen (1968), p.60
Methods and Rules of Interpretation to Consider:
1. Original Intent
2. Textualism
3. Original Meaning
4. Stare Decisis
5. Polling Jurisdictions
6. Pragmatism
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Incorporation of the Bill of Rights & Approaching and Understanding Civil Liberties
August 28
Incorporation of the Bill of Rights
Before class read pp. 67 through 87
Also read the pages for each case
Cases to brief and discuss in class:
1. Barron v. Baltimore (1833), p. 68
The Bill of Rights imposes limitations only on the federal government.
2. Slaughterhouse Cases (1873) (Case 1 from supp. packet)
Complex early interpretation of the 14th Amendment.
3. Hurtado v. California (1884), p. 71
Grand jury indictment is not required by the due process clause of the 14th Amendment.
4. Palko v. Connecticut (1937), p. 77
Established the test for deciding which rights are selectively incorporated by the due process clause
of the 14th Amendment.
5. Duncan v. Louisiana (1968), p. 81
A jury established under the due process clause of the 14th Amendment need not be identical to a
federal jury under the Bill of Rights.
August 30
Approaching and Understanding Civil Liberties
Before class read pp. 89 though 94
Freedom of Religion: The Free Exercise of Religion and the Establishment of Religion
September 4
Freedom of Religion: The Free Exercise of Religion and the Establishment of Religion.
Before class read pp. 95 through 99.
This class will present an overview of freedom of religion
September 6
Free Exercise of Religion
Before class read pp. 99 through 104
Also read the pages for each case
Cases to Brief and Discuss in Class:
1. Reynolds v. United States (1879) (Case 2 from supp. packet)
An early case upholding the prohibition of polygamy in federal territory.
2. Cantwell v. Connecticut (1940), p. 101
An important case involving Jehovah’s Witnesses who were excluded from regulations on
solicitation because of religious freedom.
3. Minersville School District v. Gobitis (1940) (Case 3 from supp. packet)
This was the first case on the pledge of allegiance in which the pledge was upheld over religious
objections.
4. We will consider West Virginia State Board of Education v. Barnette (1943) on p. 266,
that reversed Gobitis — covered later under freedom of speech.
5. Ballard v. United States (1944) (Case 4 from supp. packet)
Case involving the “I Am” movement which held that no judge or jury in America can determine the
truth or falsity of any religious idea or claim.
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Constitutional Law: Rights and Liberties
POSC 34083 - 065 / Fall 2012
Free Exercise & Free Exercise of Religion
September 11
Free Exercise continued, begin at p. 105 and continue reading through 121
Pay very close attention to the Sherbert “Compelling Interest” Test on p. 105
Also read the pages for each case
Cases to Brief and Discuss in Class:
1. Sherbert v. Verner (1963), p. 106
This was the “old” free exercise test, abandoned in Employment Division v. Smith below. Here the
state was asked to show a compelling state or public interest sufficient to allow suspension of
employment benefits for 7th Day Adventists.
2. Wisconsin v. Yoder (1972), p. 110
The State of Wisconsin could not legitimately require compulsory school attendance beyond the 8th
grade over the religious objections of the Amish.
3. Employment Division v. Smith (1990), p. 116
New free exercise test established. Laws of general applicability prevail over religious objectives
unless they were directly or intentionally discriminatory.
September 13
Free Exercise of Religion continued
Begin at p. 122 and continue reading through top of first column on p. 129
Also read the pages for each case
Cases to Brief and Discuss in Class:
1. Church of the Lukumi Babalu Aye v. City of Hialeah, (1993), p. 122 (Case 5 from supp. packet)
Municipal ordinance prohibiting sacrifice of animals was held to be directly discriminatory against the
Santeria religion.
2. City of Boerne v. Flores (1997), p. 124
Congress attempted to restore the Sherbert test, but the SCOTUS claimed the right to make such
determinations.
3. Hosanna-Tabor Lutheran Church and School v. EEOC (2012) (Case 6 from supp. packet)
The Establishment and Free Exercise Clauses of the First Amendment bars suits brought on behalf
of ministers against their churches, claiming termination in violation of employment discrimination
laws. Moreover, because the respondent in this case was a minister within the meaning of the
ministerial exception, the First Amendment requires dismissal of her employment discrimination suit
against her religious employer.
4. Snyder v. Phelps (2011) (Case 7 from supp. packet)
This case involved the protests by members of the Westboro Baptist of Topeka, Kansas at military
funerals.
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Constitutional Law: Rights and Liberties
POSC 34083 - 065 / Fall 2012
First Exam & Establishment of Religion
September 18
FIRST EXAM
I will gladly accept questions about the first exam by email
September 20
Establishment of Religion
Begin reading at p. 129 and continue through p. 164
(stop before Edwards v. Aguillard)
Also read the pages for each case
Cases to Brief and Discuss in Class:
1. Everson v. Board of Education (1947), p. 130
This case is known for the “child benefit” theory. Provision of transportation of all children to school,
including parochial schools was not a violation.
2. Lemon v. Kurtzman (1971), p. 139
Established the 3-part test for establishment: 1) Is there a secular purpose, 2) Does it neither
advance nor hinder religion, and 3) Does it avoid excessive entanglement between church and
state?
3. Lamb’s Chapel v. Center Moriches Union Free School District (1993) (Case 8 from supp. packet)
The District violated the First Amendment's freedom of speech when it denied Lamb's Chapel the
use of school premises to show religious-oriented films. There were nine votes for the result, but the
court split 6-3 on the reasoning. Pay close attention to the several opinions.
4. Agostini v. Felton (1997), p. 148
State provision of public school teachers in parochial schools were upheld for the teaching of
secular subjects.
5. Zelman v. Simmons-Harris (2002), p. 154
A state’s public school voucher system was upheld by a 5-4 vote.
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Constitutional Law: Rights and Liberties
POSC 34083 - 065 / Fall 2012
Teaching Religious Principles in Public School & Freedom of Political Speech
September 25
Teaching Religious Principles in Public School
pp. 163 – 185
Also read the pages for each case
Cases to brief and discuss in class:
1. Edwards v Aguillard (1987), p. 165
The teaching of creationism in the public schools was held to be an advancement of religion.
2. School District of Abington Township v. Shempp and Murray v. Curlett (1963), p. 171
Bible reading or the daily recitations of the Lord’s Prayer were held to violate the Establishment
Clause.
3. Lee v Weisman (1992), p. 178
Invocations or benedictions at public high school graduation were held unconstitutional.
4. Santa Fe Independent School District v. Doe (2000) (Case 9 from supp. packet)
Prayers at high school football games were held to violate the Establishment Clause.
Public Displays of Religious Symbols
5. Lynch v. Donnelly (1984), p. 185 (Case 10 from supp. packet)
Multiple-symbols in community Nativity scene in Pawtuckett, Rhode Island upheld.
Mixed messages.
6. Van Orden v. Perry (2005), p. 186
Display of the 10 Commandments on the Texas Capitol grounds was upheld.
See also McCreary County v. ACLU (2005) on the posting of the Ten Commandments.
Decided the same day as Van Orden v. Perry.
September 27
Freedom of Political Speech
pp. 193 through 226
Also read the pages for each case
Cases to Brief and Discuss in Class:
1. Schenck v. U.S. (1919), p. 196
Established the “clear and present danger” test.
2. Abrams v. U.S. (1919), p. 198
Majority applied the “dangerous tendency” test. Holmes dissented.
3. Gitlow v. U.S. (1925), p. 201
1st Amendment incorporated—a state legislature found a dangerous tendency created by seditious
speech.
4. Dennis v. U.S. (1951), p. 212
Prosecution and conviction of the major leaders of the Communist Party U.S.A. – took account of
the “gravity of the evil, discounted by its improbability.
5. Brandenburg v. Ohio, (1969), p. 219
Distinguished between abstract advocacy of ideas and actual incitement to imminent unlawful
action.
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Constitutional Law: Rights and Liberties
POSC 34083 - 065 / Fall 2012
Content and Context of Speech & Hate Speech and Civil Liberties
October 2
Content and Context of Speech
pp. 226 through 248
Also read the pages for each case
Cases to brief and discuss in class:
1. United States v. O’Brien (1963), p. 227
Protest involving the burning of draft cards.
2. Texas v. Johnson (1989), p. 230
Flag-burning protest at the 1984 Republican Convention in Dallas.
3. Chaplinsky v. New Hampshire (1942), p. 235
The “fighting words” case. Not protected.
4. Cohen v. California (1971), p. 237
Protest involving “Fuck the Draft and Stop the War” on a jacket.
5. Hill v. Colorado (2000), p. 243
Regulating protests near a clinic offering abortions.
October 4
Hate Speech and Civil Liberties
pp. 248-257
Also read the pages for each case
Cases to Brief and Discuss in Class:
1. National Socialist Party v. Skokie (1977) (Case 11 from supp. packet)
Neo-Nazi Protest March in Skokie, Illinois.
2. R.A.V. v. City of St. Paul, Minnesota (1992), p. 251
Hate speech crime – statute overturned.
3. Wisconsin v. Mitchell (1993), p. 255
Hate crime enhancement of punishment upheld.
October 9 - Fall Break -- No Class
Student Speech
October 11
Student Speech – special rules that apply to schools
pp. 257-274
Also read the pages for each case
Cases to brief and discuss in class:
1. Tinker v. Des Moines Independent Community School District (1969), p. 257
The black arm band protest of the Vietnam War case.
2. Morse v. Frederick (2007), p. 261
The “Bongs for Jesus” case.
3. West Virginia State Board of Education v. Barnette (1943), p. 266
The 2nd flag salute case, upholding the right not to stand and salute.
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Constitutional Law: Rights and Liberties
POSC 34083 - 065 / Fall 2012
Freedom of Association & Freedom of the Press
October 16
Freedom of Association
pp. 283-289
Also read the pages for each case
Cases to Brief and Discuss in Class:
1. NAACP v. Alabama (1958), p. 284 (Case 12 from supp. Packet)
Freedom of Association and disclosure of NAACP membership records
2. Moose Lodge No. 107 v. Irvis (1972), at pp. 622-624
Liquor license at private club.
3. Boy Scouts of America v. Dale (2000), p 285
Membership rules of a private association.
October 18
Freedom of the Press
pp. 291-317
Also read the pages for each case
Cases to brief and discuss in class:
1. Near v. Minnesota (1931), p. 292
Formulation of the rule against “prior restraints” on publications.
2. New York Times v. U.S. (1971), p. 295
The “Pentagon Papers” case – application of the rule against prior restraints.
3. Hazelwood School District v. Kuhlmeir (1988), p. 303
Principal of a high school acts as publisher of a school newspaper and has some discretion as to
what shall be published.
4. Branzburg v. Hayes (1972), p. 312
On reporters’ privilege relative to Grand Jury subpoena— privilege was denied.
Obscenity & Libel
October 23
Obscenity
pp. 319-338
Also read the pages for each case
Cases to Brief and Discuss in Class:
1. Roth v. U.S. (1957), p. 321
First case applying the standard for defining obscenity.
2. Miller v. California (1973), p. 327
“Patently offensive depiction of ultimate sex acts, real or simulated, was upheld.
3. New York v. Ferber (1982), 333
Upheld prosecutions for child pornography.
October 25
Libel
pp.338-356
Also read the pages for each case
Cases to brief and discuss in class:
1. New York Times v. Sullivan (1964), p. 339
For public officials to win, recovery must be based on actual malice or reckless disregard for the
truth.
2. Gertz v. Welch (1974), p. 347
Suits brought by private individuals. States may use lower standards, but if below actual malice,
then only actual damages may be recovered.
3. Hustler Magazine v. Falwell (1988), p. 352
Jerry Falwell could not recover for an offensive parody, which reasonable people would not have
considered to represent factual claims.
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Constitutional Law: Rights and Liberties
POSC 34083 - 065 / Fall 2012
Right to Bear Arms & Second Exam
October 30
Right to Bear Arms
pp.374-383
Also read the pages for each case
Cases to Brief and Discuss in Class:
1. District of Columbia v. Heller (2008), p. 377
2nd Amendment prevents the District of Columbia from banning handguns.
2. McDonald v. City of Chicago (2010) (Case 13 from supp. packet)
2nd Amendment incorporated and right to bear arms protected by 14th Amendment due process.
3. Special Focus on Financing Elections (just before election day)
4. Citizens United v. F.E.C (2010) (Case 14 from supp. packet)
Second Exam
November 1
SECOND EXAM
I will gladly accept questions about the second exam by email
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Constitutional Law: Rights and Liberties
POSC 34083 - 065 / Fall 2012
Nov. 6 is Election Day!
Right to Privacy and Reproductive Freedom
November 6 Election Day
Right to Privacy and Reproductive Freedom
pp.385-420
Also read the pages for each case
Cases to Brief and Discuss in Class:
1. Griswold v. Connecticut (1965), p 388
Connecticut birth control statutes lead to the establishment of the right to privacy.
2. Roe v. Wade (1973), p. 396
Right of privacy extended to include abortions – application of the trimester rule.
3. Planned Parenthood v. Casey (1992), p. 409
Abortion upheld, but Justice O’Connor creates the “undue burden” test.
November 8
Update on Developments in Same-Sex Marriage and the Defense of Marriage Act
pp.420-429
Racial Discrimination I & II
November 13
Racial Discrimination I
pp.585-600
Also read the pages for each case
Cases to Brief and Discuss in Class:
1. Plessy v. Ferguson (1896), p. 586
“Separate but equal doctrine” created to sustain racial segregation in railroad cars.
2. Cumming v. Richmond County Board of Education (1899) (Case 15 from supp. Packet)
Application of the “separate but equal” doctrine to achieve separation by race, but not much equality.
3. Sweatt v. Painter (1950), p. 591
Desegregation of the University of Texas Law School.
4. Brown v. Board I and II (1954 – 1955), pp. 594 and 598
The two fundamental school desegregation cases.
November 15
Racial Discrimination II
pp.601-612
Also read the pages for each case
Cases to brief and discuss in class:
1. Swann v. Charlotte-Mecklenburg (1971), p. 601
The high point of school desegregation—school busing coupled with federal aid to education.
2. Parents Involved in Community Schools v. Seattle and
Meredith v. Jefferson County Board of Education (2007), p. 606.
By a 5-4 vote the SCOTUS applied “strict scrutiny” to efforts to integrate public education.
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Constitutional Law: Rights and Liberties
POSC 34083 - 065 / Fall 2012
Gender-Based Discrimination & Thanksgiving!
November 20
Gender-Based Discrimination
pp.624-642
Also read the pages for each case
Cases to Brief and Discuss in Class:
1. Bradwell v. Illinois (1873) (Case 16 from supp. Packet)
Old case that upheld the power of the State of Illinois to entirely exclude women from admission to
the bar.
2. Reed v. Reed (1971), p. 626
First modern case on gender discrimination.
3. Frontiero v. Richardson (1973) (Case 17 from supp. Packet)
Case that held that differences in military spousal benefits were discriminatory.
4. Craig v. Boren (1976), p. 630
The Oklahoma “near beer” (3.2%) case that established the rule of heightened scrutiny.
5. U.S. v. Virginia (1996), p. 635
The VMI case that confirmed heightened scrutiny and struck down VMI’s exclusion of women.
November 22
Thanksgiving!
Sexual Orientation & Affirmative Action I
November 27
Sexual Orientation
pp. 642-848
Also read the pages for each case
Cases to Brief and Discuss in Class:
1. Romer v. Evans (1996), p. 643
Amendment to Colorado’s constitution that forbad the extension of official protection to those who
suffer discrimination based on sexual orientation held unconstitutional.
2. Lawrence v. Texas (2000), p. 422
Reversed Bowers v. Hardwick (1986), p. 421, and held Texas homosexual sodomy law
unconstitutional.
3. Update on the “Defense of Marriage Act” (pending cases)
November 29
Affirmative Action I
pp.659-676
Also read the pages for each case
Cases to brief and discuss in class:
1. Regents v. Bakke (1978), p. 661
An Affirmative Action case for admission to medical school. Opinion by Justice Powell supported
holistic process for seeking a diverse student body.
2. City of Richmond v. J.A. Croson Co. (1989), p. 669 and (Case 18 from supp. packet)
Minority set-aside program overturned because the city had not sufficiently demonstrated a history
of racial discrimination in awarding contracts.
3. Adarand Constructors v. Peña (1995), p. 671
Strict scrutiny applied to minority preferences in Federal Highway contacts.
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Constitutional Law: Rights and Liberties
POSC 34083 - 065 / Fall 2012
Affirmative Action II
December 4
Last Day of Class!!
Affirmative Action II
pp. 676-688
Also read the pages for each case
Cases to Brief and Discuss in Class:
1. Grutter v. Bollinger (2003) (Case 19 from supp. packet)
SCOTUS upholds a holistic affirmative action program for the University of Michigan Law School.
2. Gratz v. Bolligner (2003) (Case 20 from supp. packet)
Undergraduate affirmative action program that utilized a point system of awards to
underrepresented groups was overturned.
3. Abigail Fisher v. University of Texas at Austin
Pending case before the SCOTUS to be decided in the current term.
December 11 - Final Exam, 3:00 to 5:30 p.m.
Senior Grades Due by 5 p.m. on December 12
IMPORTANT COURSE POLICIES:
Statement of Disability Services at TCU
Disabilities Statement : Texas Christian University complies with the Americans with Disabilities Act and
Section 504 of the Rehabilitation Act of 1973 regarding students with disabilities. Eligible students seeking
accommodations should contact the Coordinator of Services for Students with Disabilities in the Center for
Academic Services located in Sadler Hall, 1010. Accommodations are not retroactive, therefore, students
should contact the Coordinator as soon as possible in the term for which they are seeking accommodations.
Further information can be obtained from the Center for Academic Services, TCU Box 297710, Fort Worth, TX
76129, or at (817) 257-7486.
Adequate time must be allowed to arrange accommodations and accommodations are not retroactive;
therefore, students should contact the Coordinator as soon as possible in the academic term for which they are
seeking accommodations. Each eligible student is responsible for presenting relevant, verifiable, professional
documentation and/or assessment reports to the Coordinator.
Students with emergency medical information or needing special arrangements in case a building must be
evacuated should discuss this information with their instructor/professor as soon as possible.
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Constitutional Law: Rights and Liberties
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Academic Misconduct:
**Academic Misconduct (Sec. 3.4 from the Student Handbook) –Any act that violates the academic integrity of
the institution is considered academic misconduct. The procedures used to resolve suspected acts of
academic misconduct are available in the offices of Academic Deans and the Office of Campus Life and are
listed in detail in the Undergraduate Catalog (Student Policies>Academic Conduct Policy Details. Specific
examples include, but are not limited to:
 Cheating: Copying from another student’s test paper, laboratory report, other report, or computer files
and listings; using, during any academic exercise, material and/or devices not authorized by the person
in charge of the test; collaborating with or seeking aid from another student during a test or laboratory
without permission; knowingly using, buying, selling, stealing, transporting, or soliciting in its entirety or
in part, the contents of a test or other assignment unauthorized for release; substituting for another
student or permitting another student to substitute for oneself.
 Plagiarism: The appropriation, theft, purchase or obtaining by any means another’s work, and the
unacknowledged submission or incorporation of that work as one’s own offered for credit.
Appropriation includes the quoting or paraphrasing of another’s work without giving credit therefore.
 Collusion: The unauthorized collaboration with another in preparing work offered for credit.
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